ILLINOIS POLLUTION CONTROL BOARD
December 5, 2002
BRIAN FINLEY, individually, LOCAL 3315
of the AMERICAN FEDERATION OF
STATE, COUNTY, & MUNICIPAL
EMPLOYEES (COOK COUNTY PUBLIC
DEFENDERS ASSOCIATION), and the
following additional individuals: LISA A.
KOSOWSKI, QUENTIN PITLUK, MARTHA
C. NEIRA, JOEL TOBIN, TACYE
VERSHER, SEAN VARGAS-BARLOW,
ROSA FLORES, DANITA KIRK, JENNIFER
BOROWITZ-GUTZKE, OPHELIA BARNER-
COLEMAN, KARIN WENZEL, BARBARA
A. BLAINE, VALLERIA FORNEY, JAMES
BURTON, AMANDA LAMERATO,
JENNIFER HOMBURGER, THOMAS
GRIPPANDO, KATE HAARVEI, K. MARY
FLYNN, CHRIS WILLIAMS, ALPA J.
PATEL, PAMELA D. MOSS, LILIANA J.
DAGO, PATRICIA CINTRON-BASTIN,
TAMMY EVANS, CELESTE K. JONES,
WILLIAM A. GOMEZ, KAREN MAHER,
TRESA LOUISE JACKSON, MARCIA G.
HAWK, MARIZOL RODRIGUEZ,
MODHURI K. PATEL, JOSE A. PEREZ,
NICHOLAS A. YOUNGBLOOD,
CATHLEEN REYNOLDS, DAWN M.
ROESENER, KIMBERLIE BOONE, AMY E.
McCARTHY, QUENTIN HALL,
GWENDALYN GRANT, GAIL DAILY,
COREY E. MYERS, MARIA DI
CRESCENZO, MARIBEL RODRIGUEZ,
FELICIA BATES, DARNELL TROTTER,
HATTIE MARTIN, AUGUSTUS
PINCKNEY, GEORGE SANCHEZ, LIZETTE
U. McBRIDE, DEBORAH BUFFKIN,
RONALD JACKSON, JOANNE
MORRISON, VALARIE M. COURTO-HILL,
KIMBERLY TURNER, CONSTANCE L.
HARRIS, STEPHANIE FLOWERS, B.
YVONNE YOUNGER, DORIS J. YUFUF,
LUCRETIA ROGERS, DANA N. LOCKETT,
TAMARA BRASS, JAMES COLEMAN,
SIDNEY TYUS, JACK L. McBRIDE,
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PHYLLIS RYAN, DORIS LOPEZ, SHIRLEY
A. VESSEL, MARY PEARSON, ANGELINE
RECANDEZ, DELORES WASHINGTON,
PATRICIA M. SALORIO, MICHELLE E.
HOLMES, RY HANNAH, ADDIE
HAWKINS, RONALD DOZIER, BARBARA
GORDON, RALPH LEAKES, WILLIE
LEAKS, JR., THEORDORE SHORTER, JR.,
QUDALLA WARD, MICHAEL JONES,
PEARLIE MAE MOSS, SHEILA DUNN,
SHARON LEE, LAVERNE BULLOCK,
HELEN CHARLES, EDWARD J. POE,
ANTHONY BINGHAN, RENETTA GLASS
WARD, LILLIAN OWENS, FREDDIE
JOHNSON, MINNIE HORTON, CARL
TRIBBLE, SR., CLAY APPLETON, SAM
JOHNSON, GENEVA L. CHARLES and
NATHANIEL CHARLES,
Complainants,
v.
IFCO ICS-CHICAGO, INC.,
Respondent.
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PCB 02-208
(Citizens Enforcement - Air)
ORDER OF THE BOARD (by T. E. Johnson):
On May 21, 2002, Local 3315 of the American Federation of State, County & Municipal
Employees (AFSCME), Brian Finley, and other named individuals (complainants) filed a
complaint alleging that IFCO ICS-Chicago, Inc. (IFCO) violated Section 9(a) of the
Environmental Protection Act (Act) (415 ILCS 5/9(a) (2000)
amended by
P.A. 92-0574, eff.
June 26, 2002) by emitting chemicals, odors, and smoke into the environment, resulting in air
pollution. IFCO’s facility is located at 2300 West 13th Street in Chicago, Cook County.
On November 18, 2002, the parties filed a joint motion asking the Board to dismiss the
complaint because the parties have entered into a stipulation and proposed settlement agreement,
which accompanied the motion. Mot. at 1. The parties assert in their joint motion that the Board
is not obligated to hold a hearing before accepting this stipulation and proposal for settlement.
Mot. at 1-2. The parties contend that Section 103.304 of the Board’s procedural rules indicates a
hearing is only required in connection with a stipulation and proposal for settlement when the
Board orders a hearing be held in accordance with Section 103.300(c). Mot. at 1. The parties
argue that Section 103.300(c) only addresses settlements in enforcement actions brought by the
State. Thus, assert the parties, the requirement that a hearing be held prior to the Board
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approving an enforcement settlement only applies when the complaint is brought by the State.
Id.
Section 31(d)(1) of the Act states, “Any person may file with the Board a complaint,
meeting the requirements of subsection (c) of this Section . . . .” Unless the Board determines
that such complaint is duplicative or frivolous, it shall schedule a hearing.” 415 ILCS 5/31(d)(1)
(2000)
amended by
P.A. 92-0574, eff. June 26, 2002). Section 31(c)(1) provides that a
complaint “. . . shall require the person so complained against to answer the charges of such
formal complaint at a hearing before the Board . . . .” Section 31(c)(2) provides an exception to
the hearing requirement for stipulated settlements filed by the Attorney General. This exception
was adopted in P.A. 87-134 that became effective on August 13, 1991. Prior to the adoption of
P.A. 87-134, the Board required that hearing be held on all complaints including cases where the
Attorney General filed stipulations.
See e.g.,
IEPA v. Ekco, PCB 88-177 (Feb. 23, 1989).
The Board has consistently required citizen enforcement cases to proceed to hearing
before a stipulation would be accepted.
See e.g.,
Lardner v. Dominick’s Finer Foods, Inc., PCB
00-92 (Feb. 15, 2001); Malina v. Day, PCB 98-54 (July 22, 1999); Corning v. Thurela, PCB 96-
69 (Aug. 15, 1996); and Landfill Emergency Action Committee v. McHenry County Sanitary
Landfill and Recycling Center, Inc., PCB 85-9 (Jun. 20, 1986). No exception to the hearing
requirement exists for citizen’s enforcement actions. Because Section 31(d) provides that a
complaint must meet the 31(c) requirements, and 31(c)(1) requires a hearing, a hearing in a
citizen’s enforcement action cannot be waived.
The Board is not persuaded by the argument that its procedural rules do not require a
hearing in a citizen’s enforcement action. In its December 21, 2000 opinion accompanying the
procedural rules, the Board stated that it “will hold a hearing when parties to a citizen
enforcement action ask the Board to approve the terms of the proposed settlement. If the parties
do not desire a hearing on the proposed settlement, they may file a motion to dismiss the case.”
Revision of the Board’s Procedural Rules: 35 Ill. Adm. Code 101–130, R00-20 (Dec. 21 2000),
slip op. at 11.
Accordingly, the Board denies the joint motion to dismiss the complaint. The parties are
directed to proceed to a hearing on the proposed settlement if they desire the Board to enter the
relief specified therein.
IT IS SO ORDERED.
Chairman C.A. Manning and Board Member M.E. Tristano dissented.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on December 5, 2002, by a vote of 4-2.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board